EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into on this 04th day of July, 2013, by
and between SunVesta, Inc., of 00 Xxxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx CH-8942 (the "Company"), and
Xxxxx Xxxxxxx, a Swiss individual, resident at Xxxxxxxxxxxxxx 00, Xxxxxxxxxxx, XX-0000 Xxxxxxxxxx
(hereinafter, the “Executive”).
W I T N E S S E T H:
WHEREAS, the Executive is to be employed as Chief Executive Officer and Chief Financial
Officer of the Company.
WHEREAS, the Executive possesses intimate knowledge of the business and affairs of the
Company, its policies, methods and personnel;
WHEREAS, the Board of Directors of the Company recognizes that Executive will contribute to
the growth and success of the Company, and therefore desires to secure Executive's employment and
quantify his compensation;
WHEREAS, the Board has determined that this Agreement will reinforce and encourage the
Executive's continued attention and dedication to the Company;
WHEREAS, the Executive is willing to make his services available to the Company on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are mutually
acknowledged, the Company and the Executive hereby agree as follows:
1. Definitions.
When used in this Agreement, the following terms shall have the following meanings:
(a)
“Accrued Obligations” means:
(i)
all accrued but unpaid Base Salary through the end of the Term of
Employment;
(ii)
any unpaid or un-reimbursed expenses incurred in accordance with
Company policy, including amounts due under Article 5(a) hereof, to the extent incurred during the Term
of Employment; and
(iii)
those vested benefits provided under the Company’s employee benefit
plans, stock options plans, deferred compensation plans, programs or arrangements in which the
Executive participates, in accordance with the terms thereof.
(iv)
any earned unpaid Bonus or Retention Award in respect to any
completed fiscal year that has ended on or prior to the end of the Term of Employment; and
(v)
rights to indemnification by virtue of the Executive’s position as an
officer or director of the Company or its subsidiaries and the benefits under any directors’ and officers’
liability insurance policy maintained by the Company, in accordance with its terms thereof.
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(b)
“Affiliate” means any entity that controls, is controlled by, or is under common
control with, the Company.
(c)
“Base Salary” means the salary provided for in Article 4(a) hereof or any
increased salary granted to Executive pursuant to Article 4(a) hereof.
(d)
“Beneficial Ownership” shall have the meaning ascribed to such term in Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as amended.
(e)
“Board” means the Board of Directors of the Company.
(f)
“Bonus” means any bonus payable to the Executive pursuant to Article 4(b)
hereof.
(g)
“Bonus Period” means the period for which a Bonus is payable. Unless
otherwise specified by the Board, the Bonus Period shall be the fiscal year of the Company.
(h)
“Cause” means:
(i)
a conviction of the Executive, or a plea of nolo contendere, to a felony
involving moral turpitude; or
(ii)
willful misconduct or gross negligence by the Executive resulting, in
either case, in material economic harm to the Company or any Related Entities; or
(iii)
a willful continued failure by the Executive to carry out the reasonable
and lawful directions of the Board; or
(iv)
fraud, embezzlement, theft or dishonesty of a material nature by the
Executive against the Company or any Affiliate or Related Entity, or a willful material violation by the
Executive of a policy or procedure of the Company or any Affiliate or Related Entity, resulting, in any
case, in material economic harm to the Company or any Affiliate or Related Entity; or
(v)
a willful material breach by the Executive of this Agreement.
An act or failure to act shall not be “willful” if (i) done by the Executive in good faith or (ii) the Executive
reasonably believed that such action or inaction was in the best interests of the Company and the Related
Entities.
(i)
“Change in Control” means:
(i)
The acquisition by any Person of Beneficial Ownership of more than
fifty percent (50%) of the then outstanding shares of common stock of the Company (the “Outstanding
Company Common Stock”) (the foregoing Beneficial Ownership hereinafter being referred to as a
"Controlling Interest"); provided, however, that for purposes of this definition, the following acquisitions
shall not constitute or result in a Change of Control: (v) any acquisition directly from the Company; (w)
any acquisition by the Company; (x) any acquisition by any person that as of the Commencement Date
owns Beneficial Ownership of a Controlling Interest; (y) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any subsidiary of the Company; or (z) any
acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of
subsection (iii) below; or
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(ii)
During any period of two (2) consecutive years (not including any period
prior to the Commencement Date) individuals who constitute the Board on the Commencement Date (the
“Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the Commencement Date whose election,
or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board shall be considered as though such individual were
a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
(iii)
Consummation of a reorganization, merger, statutory share exchange or
consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or
other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or
stock of another entity by the Company or any of its subsidiaries (each a “Business Combination”), in
each case, unless, following such Business Combination, (A) all or substantially all of the individuals and
entities who were the Beneficial Owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than fifty percent (50%) of the then outstanding shares of common stock
and the combined voting power of the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of such transaction owns the Company or
all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to such Business Combination of
the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may
be, (B) no Person (excluding any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination beneficially owns, directly or indirectly, twenty
percent (20%) or more of, respectively, the then outstanding shares of common stock of the corporation
resulting from such Business Combination or any Person that as of the Commencement Date owns
Beneficial Ownership of a Controlling Interest beneficially owns, directly or indirectly, more than fifty
percent (50%) of the then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to the Business Combination, and (C) at
least a majority of the members of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of the initial agreement,
or of the action of the Board, providing for such Business Combination; or
(iv)
approval by the shareholders of the Company of a complete liquidation
or dissolution of the Company.
(j)
“Code” means the Internal Revenue Code of 1986, as amended.
(k)
“Commencement Date” means July 1st, 2013.
(l)
“Common Stock” means the common stock of the Company, par value $0.01 per
share.
(m)
“Competitive Activity” means an activity that is in material or direct competition
with the Company in any of the States within the United States, or countries within the world, in which
the Company conducts business with respect to a business in which the Company engaged while the
Executive was employed by the Company.
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(n)
“Confidential Information” means all trade secrets and information disclosed to
the Executive or known by the Executive as a consequence of or through the unique position of his
employment with the Company or any Related Entity (including information conceived, originated,
discovered or developed by the Executive and information acquired by the Company or any Related
Entity from others) prior to or after the date hereof, and not generally or publicly known (other than as a
result of unauthorized disclosure by the Executive), about the Company or any Related Entity or its
business.
(o)
“Disability” means the Executive’s inability, or failure, to perform the essential
functions of his position, with or without reasonable accommodation, for any period of three months or
more in any 12 month period, by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a continuous period of not less than
12 months.
(p)
“Equity Awards” means any stock options, restricted stock, restricted stock units,
stock appreciation rights, phantom stock or other equity based awards granted by the Company or any of
its Affiliates to the Executive.
(q)
“Excise Tax” means any excise tax imposed by Section 4999 of the Code,
together with any interest and penalties imposed with respect thereto, or any interest or penalties are
incurred by the Executive with respect to any such excise tax.
(r)
“Expiration Date” means the date on which the Term of Employment, including
any renewals thereof under Article 3(b), shall expire.
(s)
“Good Reason” means:
(i)
the assignment to the Executive of any duties inconsistent in any material
respect with the Executive's position (including status, titles and reporting requirements), authority, duties
or responsibilities as contemplated by Article 2(b) of this Agreement, or any other action by the Company
that results in a material diminution in such position, authority, duties or responsibilities, excluding for
this purpose an isolated, insubstantial and inadvertent action not taken in bad faith which is remedied by
the Company promptly after receipt of notice thereof given by the Executive;
(ii)
any material failure by the Company to comply with any of the material
provisions of this Agreement, other than an isolated, insubstantial and inadvertent failure not occurring in
bad faith that is remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(iii)
any instruction by the Company to act in any manner that is unlawful or
contrary to Securities and Exchange Commission rules and regulations, other than an isolated,
insubstantial or inadvertent instruction not given in bad faith that is remedied by the Company promptly
after receipt of notice thereof given by the Executive; and
(iv)
any termination by the Company of the Executive’s employment other
than for Cause pursuant to Article 6(b), or by reason of the Executive’s Disability pursuant to Article 6(c)
of this Agreement, prior to the Expiration Date
(t)
“Group” shall have the meaning ascribed to such term in Section 13(d) of the
Securities Exchange Act of 1934.
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(u)
“Initial Term” means July 1, 2013 to June 30, 2017.
(v)
“Non-qualified Defined Contribution Plan” means the Non-Qualified
Contribution Plan adopted by the board of directors of a Related Entity, as amended from time to time,
and any successor thereto.
(w)
“Person” shall have the meaning ascribed to such term in Section 3(a)(9) of the
Securities Exchange Act of 1934 and used in Sections 13(d) and 14(d) thereof.
(x)
“Related Entity” means any subsidiary, and any business, corporation,
partnership, limited liability company or other entity designated by Board in which the Company or a
subsidiary holds a substantial ownership interest.
(y)
“Restricted Period” shall be the Term of Employment and if the Term of
Employment is terminated for any reason other than by the Company for Cause or by the Executive for
Good Reason, the eighteen (18) month period immediately following termination of the Term of
Employment. Notwithstanding the foregoing, the Restricted Period shall end in the event that (i) the
Company fails to make any payments or provide any Benefits required by Article 6 hereof with 15 days
of written notice from the Executive of such failure or (ii) the Company no longer has the rights to the
confidential information.
(z)
“Severance Amount” shall be in the event of termination of the Executive’s
employment by the Company without Cause, or by the Executive with Good Reason, an amount equal to
the following based on when the Termination Date occurs after the Commencement Date: a) 0-12 months
-$120,000, b) 13-24 months - $240,000 and c) over 24 months - $360,000. The total amount shall be due
within one month of the effective date of the Termination Date, a minimum of $120,000 which is payable
in cash and the remainder up to an aggregate of $360,000 is payable in shares of the Company’s Common
Stock.
(aa)
“Severance Term” means the one (1) year period following the Termination
Date.
(bb)
“Stock Option” means a right granted to the Executive under Article 4(d) hereof
to purchase Common Stock under the Company’s Stock Option Plan.
(cc)
“Stock Option Plan” means the 2013 Stock Option Plan Directors adopted by
the Company on January 1, 2013, as amended from time to time, and any successor plan thereto.
(dd)
“Term of Employment” means the period during which the Executive shall be
employed by the Company pursuant to the terms of this Agreement.
(ee)
“Termination Date” means the date on which Executive’s employment ends.
2.
Employment.
(a)
Employment and Term.
The Company hereby agrees to employ the Executive and the Executive hereby agrees to
serve the Company during the Term of Employment on the terms and conditions set forth herein.
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(b)
Duties of Executive.
During the Term of Employment, the Executive shall be employed and serve as Chief
Operating Officer of the Company, and shall have such duties typically associated with such title,
including, without limitation, coordinating the day to day management of the Company with its Chief
Executive Officer, responsibility for the review of the Company’s quarterly and annual financial
statements and reporting to the Chief Executive, and the Board, as necessary. The Executive shall
faithfully and diligently perform all services as may be reasonably assigned to him for his position by the
Board of the Company, and shall exercise such power and authority as may from time to time be
delegated to him by the Board. The Executive shall devote no less than 100% of his business time,
attention and efforts to the performance of his duties under this Agreement, render such services to the
best of his ability, and use his reasonable best efforts to promote the interests of the Company. The
Executive shall not engage in any other business or occupation, other than as declared and existing at the
Commencement Date during the Term of Employment, including, without limitation, any activity that (i)
conflicts with the interests of the Company or its subsidiaries, (ii) interferes with the proper and efficient
performance of his duties for the Company, or (iii) interferes with the exercise of his judgment in the
Company’s best interests. Notwithstanding the foregoing or any other provision of this Agreement, it
shall not be a breach or violation of this Agreement for the Executive to (x) serve on civic or charitable
boards or committees, or (y) deliver lectures, or fulfill speaking engagements, (z) advise companies, so
long as such activities do not interfere with or detract from the performance of the Executive’s
responsibilities to the Company in accordance with this Agreement.
3.
Term.
(a)
Initial Term.
The initial Term of Employment under this Agreement, and the employment of the
Executive hereunder, shall commence on the Commencement Date and shall expire on June 30, 2017,
unless sooner terminated in accordance with Article 6 hereof.
(b)
Renewal Terms.
At the end of the Initial Term, the Term of Employment automatically shall renew for
two (2) successive two (2) year terms (subject to earlier termination as provided in Section 6 hereof),
unless the Company or the Executive delivers written notice to the other at least three (3) months prior to
the Expiration Date of its or his election not to renew the Term of Employment.
4.
Compensation.
(a)
Base Salary.
The Executive shall earn a Base Salary at the annual rate of $144,000 ($12,000 per
month) during the Term of Employment, with such Base Salary payable in installments consistent with
the Company's normal payroll schedule, subject to applicable withholding and other taxes. The Base
Salary shall be reviewed, at least annually, for merit increases and may, by action and at the discretion of
the Board, be increased at any time or from time to time, but may not be decreased from the then current
Base Salary.
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(b)
Bonuses.
(i)
The Executive shall receive such additional bonuses, if any, as the
Compensation Committee and the Board of Directors may in its sole and absolute discretion determine.
(ii)
Any Bonus payable pursuant to this Article 4(b) shall be paid by the
Company to the Executive within 2 months after the end of the Bonus Period for which it is payable.
(c)
Signing Bonus
The Executive shall earn a signing bonus of five million (5,000,000) shares of the Company’s Common
Stock to be issued to Executive within 1 month of the Commencement Date and a signing bonus in cash
in the amount of seventy eight thousand United States Dollars (USD 78,000).
(d)
Stock Options.
The Executive shall be granted 12,000,000 Stock Options, from the SunVesta,
Inc. 2013 Stock Option Plan, at an exercise price of $0.05 per share, which Stock Options shall vest as
follows: 3,000,000 Stock Options on that date which the Company or Related Entity completes a bridge
financing before the main financing agreement, 4,000,000 Stock Options on that date which the Company
or Related Entity completes that financing anticipated for the development of the Paradisus Papagayo Bay
with any entity or financing vehicle and 5,000,000 Stock Options on that date which Paradisus (Xxx
Xxxxx, S.A.) assumes management responsibilities for the Paradisus Papagayo Bay, subject to the terms
and conditions of the Stock Option Agreement (attached hereto as Appendix A), the Stock Option Plan
and all rules or regulations of the Securities and Exchange Commission applicable thereto. Future stock
option grants, and the terms and conditions thereof, shall be determined by the Board in its discretion
pursuant to the Stock Option Plan or the plan or arrangement pursuant to which they are granted.
(e)
Retention Award
The Executive shall earn a Retention Award of three million (3,000,000) shares of
Common Stock due and payable within 30 days of each annual anniversary over the Term of
Employment.
5.
Expense Reimbursement and Other Benefits
(a)
Reimbursement of Expenses.
Upon the submission of proper substantiation by the Executive, and subject to such rules
and guidelines as the Company may from time to time adopt with respect to the reimbursement of
expenses of executive personnel, the Company shall reimburse the Executive for all reasonable expenses
actually paid or incurred by the Executive in the course of and pursuant to the business of the Company.
The Executive shall account to the Company in writing for all expenses for which reimbursement is
sought and shall supply to the Company copies of all relevant invoices, receipts or other evidence
reasonably requested by the Company.
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(b)
Compensation/Benefit Programs.
During the Term of Employment, the Executive shall be entitled to participate in all
medical, dental, hospitalization, accidental death and dismemberment, disability, travel and life insurance
plans, and any and all other plans as are presently and hereinafter offered by the Company or a Related
Entity to its executive personnel, including savings, pension, profit-sharing and deferred compensation
plans, subject to the general eligibility and participation provisions set forth in such plans. During the
Term of Employment the Company shall provide, or through a Related Entity provide health insurance,
which shall include medical, dental, vision and prescription coverage for Executive and his immediate
family on the terms and conditions of the Related Entity’s existing health insurance.
(c)
Automobile.
During the Term of Employment, the Company shall furnish the Executive with an
automobile allowance of no less than $1,000.00 per month.
(d)
Other Benefits.
The Executive shall be entitled to four (4) weeks of paid vacation each calendar year
during the Term of Employment on the first anniversary of the Commencement Date, to be taken at such
times as the Executive and the Company shall mutually determine and provided that no vacation time
shall significantly interfere with the duties required to be rendered by the Executive hereunder. Any
vacation time not taken by Executive during any calendar year may be carried forward into any
succeeding calendar year, subject to a maximum accrual of ten (10) weeks. The Executive shall receive
such additional benefits, if any, as the Board of the Company shall from time to time determine.
6.
Termination.
(a)
General.
The Term of Employment shall terminate upon the earliest to occur of (i) the Executive’s
death, (ii) a termination by the Company by reason of the Executive’s Disability, (iii) a termination by the
Company with or without Cause, or (iv) a termination by Executive with or without Good Reason. Upon
any termination of Executive’s employment for any reason, except as may otherwise be requested by the
Company in writing and agreed upon in writing by Executive, the Executive shall resign from any and all
directorships, committee memberships or any other positions Executive holds with the Company or any
Related Entity.
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(b)
Termination by Company for Cause.
The Company shall at all times have the right, upon written notice to the Executive, to
terminate the Term of Employment, for Cause. In no event shall a termination of the Executive’s
employment for Cause occur unless the Company gives written notice to the Executive in accordance
with this Agreement stating with reasonable specificity the events or actions that constitute Cause and
providing the Executive with an opportunity to cure (if curable) within a reasonable period of time. No
termination of the Executive’s employment for Cause shall be permitted unless the Termination Date
occurs during the 120-day period immediately following the date that the events or actions constituting
Cause first become known to the Board. Cause shall in no event be deemed to exist except upon a
decision made by the Board, at a meeting, duly called and noticed, to which the Executive (and the
Executive’s counsel) shall be invited upon proper notice. If the Executive’s employment is terminated by
the Company for Cause by reason of Article 6(b) hereof, and the Executive’s conviction is overturned on
appeal, then the Executive’s employment shall be deemed to have been terminated by the Company
without Cause in accordance with Article 6(e) below. In the event that the Term of Employment is
terminated by the Company for Cause, Executive shall be entitled only to the Accrued Obligations.
(c)
Disability.
The Executive's employment hereunder shall terminate upon his Disability. The
Executive's employment shall terminate in such a case on the last day of the applicable period;
provided, however, in no event shall the Executive be terminated by reason of Disability unless (i) the
Executive is eligible for the long-term disability benefits set forth in Article 5(b) and (ii) the Executive
receives written notice from the Company, at least 30 days in advance of such termination, stating its
intention to terminate the Executive for reason of Disability and setting forth in reasonable detail the facts
and circumstances claimed to provide a basis for such termination. In the event that the Term of
Employment is terminated due to the Executive’s Disability, in addition to any benefits available from
applicable insurance, the Executive shall be entitled to:
(i)
the Accrued Obligations, payable as and when those amounts would
have been payable;
(ii)
the continuation of the health benefits provided to Executive and his
covered dependents under the Company or Related Entity health plans as in effect from time to time after
the Termination Date at the same cost applicable to active employees until the expiration of the Severance
Term.
(d)
Death.
In the event that the Term of Employment is terminated due to the Executive’s death, the
Executive shall be entitled to:
(i)
Accrued Obligations;
(ii)
the continuation of the health benefits provided to the Executive’s
covered dependents under the Company health plans as in effect from time to time after the Executive’s
death at the same cost applicable to dependents of active employees until the expiration of the Severance
Term.
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(e)
Termination Without Cause.
The Company may terminate the Term of Employment at any time without Cause, by
written notice to the Executive not less than 30 days prior to the effective date of such termination. In the
event that the Term of Employment is terminated by the Company without Cause (other than due to the
Executive’s Death or Disability) the Executive shall be entitled to:
(i)
the Accrued Obligations;
(ii)
the Severance Amount, payable in cash in three equal installments
commencing 15 days, 45 days and 75 days after the Termination Date; and
(iii)
the continuation of the health benefits provided to Executive and his
covered dependents under the Related Entity health plans as in effect from time to time after the date of
such termination at the same cost applicable to active employees until the expiration of the Severance
Term.
(f)
Termination by Executive for Good Reason.
The Executive may terminate the Term of Employment for Good Reason by providing
the Company thirty (30) days’ written notice setting forth in reasonable specificity the event that
constitutes Good Reason, which written notice, to be effective, must be provided to the Company within
one hundred and twenty(120) days of the occurrence of such event. During such thirty (30) day notice
period, the Company shall have a cure right (if curable), and if not cured within such period, the
Executive’s termination shall be effective upon the date immediately following the expiration of the thirty
(30) day notice period, and the Executive shall be entitled to the same payments and benefits as provided
in Article 6(e) above for a termination without Cause.
(g)
Termination by Executive Without Good Reason.
The Executive may terminate his employment without Good Reason by providing the
Company thirty (30) days’ written notice of such termination. In the event of a termination of
employment by the Executive under this Section 6(g), the Executive shall be entitled only to the Accrued
Obligations. In the event of termination of the Executive’s employment under this Article 6(g), the
Company may, in its sole and absolute discretion, by written notice, accelerate such date of termination
and still have it treated as a termination without Good Reason.
(h)
Termination Upon Expiration Date.
In the event that Executive’s employment with the Company terminates upon the
expiration of the Term of Employment, the Executive shall be entitled to and the Company shall pay the
Executive:
(i)
the Accrued Obligations; and
(ii)
the continuation of the health benefits provided to Executive and his
covered dependants under the Company health plans as in effect from time to time after the date of such
termination at the same cost applicable to active employees until the expiration of the Severance Term.
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(i)
Change in Control of the Company.
If the Executive’s employment is terminated by the Company without Cause or by the
Executive for Good Reason during (y) the 6-month period preceding the date of the Change in Control or
(z) the two 2 year period immediately following the Change in Control, the Executive shall be entitled to:
(i)
the Accrued Obligations, payable as and when those amounts would
have been payable had the Term of Employment not ended; including the immediate vesting of Stock
Options and Retention Award through the end of the Term of Employment;
(ii)
a payment equal to the maximum Severance Amount of $180,000; and
(iii)
the continuation of the health benefits provided to Executive and his
covered dependants under the Company health plans as in effect from time to time after the date of such
termination at the same cost applicable to active employees until the expiration of the Severance Term.
(j)
Release.
Any payments due to Executive under this Article 6 (other than the Accrued Obligations
or any unpaid expenses or payments due on account of the Executive’s death) shall be conditioned upon
Executive’s execution of a general release of claims in the form attached hereto as Exhibit A (subject to
such modifications as the Company reasonably may request).
(k)
Cooperation.
Following the Term of Employment, the Executive shall give his assistance and
cooperation willingly, upon reasonable advance notice with due consideration for his other business or
personal commitments, in any matter relating to his position with the Company, or his expertise or
experience as the Company may reasonably request, including his attendance and truthful testimony
where deemed appropriate by the Company, with respect to any investigation or the Company’s defense
or prosecution of any existing or future claims or litigations or other proceedings relating to matters in
which he was involved or potentially had knowledge by virtue of his employment with the Company. In
no event shall his cooperation materially interfere with his services for a subsequent employer or other
similar service recipient. To the extent permitted by law, the Company agrees that (i) it shall promptly
reimburse the Executive for his reasonable and documented expenses in connection with his rendering
assistance and/or cooperation under this Article 6(k) upon his presentation of documentation for such
expenses and (ii) the Executive shall be reasonably compensated for any continued material services as
required under this Article 6(k).
(l)
Return of Company Property.
Following the Termination Date, the Executive or his personal representative shall return
all Company property in his possession, including but not limited to all computer equipment (hardware
and software), telephones, facsimile machines, palm pilots and other communication devices, credit cards,
office keys, security access cards, badges, identification cards and all copies (including drafts) of any
documentation or information (however stored) relating to the business of the Company, its customers
and clients or its prospective customers and clients.
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(m)
Section 409A.
To the extent that the Executive otherwise would be entitled to any payment (whether
pursuant to this Agreement or otherwise) during the six months beginning on the Termination Date that
would be subject to the additional tax imposed under Section 409A of the Code (“Section 409A”), (x) the
payment shall not be made to the Executive during such six month period and instead shall be made to a
trust in compliance with Revenue Procedure 92-64 (the “Rabbi Trust”) and (y) the payment shall be paid
to the Executive on the earlier of the six-month anniversary of the Termination Date or the Executive’s
death or Disability. Similarly, to the extent that the Executive otherwise would be entitled to any benefit
(other than a payment) during the six months beginning on the Termination Date that would be subject to
the Section 409A additional tax, the benefit shall be delayed and shall begin being provided (together, if
applicable, with an adjustment to compensate the Executive for the delay) on the earlier of the six-month
anniversary of the Termination Date, or the Executive’s death or Disability.
(i)
The Company shall not take any action that would expose any payment
or benefit to the Executive to the additional tax of Section 409A, unless (w) the Company is obligated to
take the action under an agreement, plan or arrangement to which the Executive is a party, (x) the
Executive requests the action, (y) the Company advises the Executive in writing that the action may result
in the imposition of the additional tax, and (z) the Executive subsequently requests the action in a writing
that acknowledges that the Executive shall be responsible for any effect of the action under Section 409A.
(ii)
It is the Company’s intention that the benefits and rights to which the
Executive could become entitled in connection with termination of employment comply with Section
409A. If the Executive or the Company believes, at any time, that any of such benefit or right does not
comply, it shall promptly advise the other and shall negotiate reasonably and in good faith to amend the
terms of such benefits and rights such that they comply with Section 409A (with the most limited possible
economic effect on the Executive and on the Company).
(n)
Clawback of Certain Compensation and Benefits.
If within the three year period after the termination of the Executive’s employment with
the Company for any reason other than by the Company for Cause:
(i)
it is determined in good faith by the Board and in accordance with the
due process requirements of Article 6(b) that the Executive’s employment could have been terminated by
the Company for Cause under Article 6(b) (unless the Board knew or should have known that as of the
Termination Date the Executive’s employment could have been terminated for Cause in accordance with
Article 6(b)); or
(ii)
if the Company determines that the Executive has engaged in fraudulent
or intentional misconduct related to or materially affecting the Company’s business operations or the
Executive’s duties at the Company; or
(iii)
the Executive breaches Article 7, then, in addition to any other remedy
that may be available to the Company in law or equity and/or pursuant to any other provisions of this
Agreement, the Executive’s employment shall be deemed to have been terminated for Cause retroactively
to the Termination Date.
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Employment Agreement – Xxxxx Xxxxxxx
The Executive also shall be subject to the following provisions:
(a) The Executive shall be required to pay to the Company, immediately upon written demand
by the Board, (a) notwithstanding Article 1 (a)(iii), Article 1(a)(iv) and Article 6(b), the additional
amounts paid to Executive as a Bonus, Deferred Compensation, Retention Award, or Severance; that
Executive would not have received had Executive’s employment been terminated for Cause; and
(b) The Executive shall be required to pay to the Company any additional amounts paid to
Executive on or after the Termination Date (including the pre-tax cost to the Company of any benefits
that are in excess of the total amount that the Company would have been required to pay and the pre-tax
cost of any benefits that the Company would have been required to provide) that are in addition to those
amounts Executive would have received if the Executive’s employment with the Company had been
terminated by the Company for Cause in accordance with Article 6(b) above, and;
(c) Notwithstanding Article 1 (a)(iii) and Article 6(b), the Executive shall forfeit at the discretion
of the Board, based on the facts and circumstances surrounding the Executive’s culpability, all or a
portion of the Stock Options granted pursuant to this Agreement, vested and unvested, or if Stock Options
have been exercised, all or a portion of the shares so issued for cancellation upon payment by Company to
Executive the full exercise price, while any remaining Stock Options, if any, may be rescinded by the
Board.
7.
Restrictive Covenants.
(a)
Non-competition.
At all times during the Restricted Period, the Executive shall not, directly or indirectly
(whether as a principal, agent, partner, employee, officer, investor, owner, consultant, board member,
security holder, creditor or otherwise), engage in any Competitive Activity, or have any direct or indirect
interest in any sole proprietorship, corporation, company, partnership, association, venture or business or
any other person or entity that directly or indirectly (whether as a principal, agent, partner, employee,
officer, investor, owner, consultant, board member, security holder, creditor, or otherwise) engages in a
Competitive Activity; provided that the foregoing shall not apply to the Executive's ownership of
Common Stock of the Company or the acquisition by the Executive, solely as an investment, of securities
of any issuer that is registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, and
that are listed or admitted for trading on any United States national securities exchange or that are quoted
on the NASDAQ Stock Market, or any similar system or automated dissemination of quotations of
securities prices in common use, so long as the Executive does not control, acquire a controlling interest
in or become a member of a group which exercises direct or indirect control of, more than five percent
(5%) of any class of capital stock of such corporation.
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Employment Agreement – Xxxxx Xxxxxxx
(b)
Non-solicitation of Employees and Certain Other Third Parties.
At all times during the Restricted Period, the Executive shall not, directly or indirectly,
for himself or for any other person, firm, corporation, partnership, association or other entity (i) employ or
attempt to employ or enter into any contractual arrangement with any employee, consultant or
independent contractor performing services for the Company, or any Affiliate or Related Entity, unless
such employee, consultant or independent contractor, has not been employed or engaged by the Company
for a period in excess of six (6) months, and/or (ii) call on or solicit any of the actual or targeted
prospective customers or clients of the Company or any Affiliate or Related Entity on behalf of any
person or entity in connection with any Competitive Activity, nor shall the Executive make known the
names and addresses of such actual or targeted prospective customers or clients, or any information
relating in any manner to the trade or business relationships of the Company or any Affiliates or Related
Entities with such customers or clients, other than in connection with the performance of the Executive’s
duties under this Agreement, and/or (iii) persuade or encourage or attempt to persuade or encourage any
persons or entities with whom the Company or any Affiliate or Related Entity does business or has some
business relationship to cease doing business or to terminate its business relationship with the Company
or any Affiliate or Related Entity or to engage in any Competitive Activity on its own or with any
competitor of the Company or any Affiliate or Related Entity.
(c)
Confidential Information.
The Executive shall not at any time divulge, communicate, use to the detriment of the
Company or for the benefit of any other person or persons, or misuse in any way, any Confidential
Information pertaining to the business of the Company. Any Confidential Information or data now or
hereafter acquired by the Executive with respect to the business of the Company (which shall include, but
not be limited to, information concerning the Company's financial condition, prospects, technology,
customers, suppliers, sources of leads and methods of doing business) shall be deemed a valuable, special
and unique asset of the Company that is received by the Executive in confidence and as a fiduciary, and
the Executive shall remain a fiduciary to the Company with respect to all of such information.
Notwithstanding the foregoing, nothing herein shall be deemed to restrict the Executive from disclosing
Confidential Information as required to perform his duties under this Agreement or to the extent required
by law. If any person or authority makes a demand on the Executive purporting to legally compel him to
divulge any Confidential Information, the Executive immediately shall give notice of the demand to the
Company so that the Company may first assess whether to challenge the demand prior to the Executive’s
divulging of such Confidential Information. The Executive shall not divulge such Confidential
Information until the Company either has concluded not to challenge the demand, or has exhausted its
challenge, including appeals, if any. Upon request by the Company, the Executive shall deliver promptly
to the Company upon termination of his services for the Company, or at any time thereafter as the
Company may request, all memoranda, notes, records, reports, manuals, drawings, designs, computer files
in any media and other documents (and all copies thereof) containing such Confidential Information.
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Employment Agreement – Xxxxx Xxxxxxx
(d)
Ownership of Developments.
All processes, concepts, techniques, inventions and works of authorship, including new
contributions, improvements, formats, packages, programs, systems, machines, compositions of matter
manufactured, developments, applications and discoveries, and all copyrights, patents, trade secrets, or
other intellectual property rights associated therewith conceived, invented, made, developed or created by
the Executive during the Term of Employment either during the course of performing work for the
Companies or their clients or which are related in any manner to the business (commercial or
experimental) of the Company or its clients (collectively, the “Work Product”), within the field of use of
wear and corrosion resistant coatings shall belong exclusively to the Company and shall, to the extent
possible, be considered a work made by the Executive for hire for the Company within the meaning of
Title 17 of the United States Code. To the extent the Work Product within the wear and corrosion
coatings field of use may not be considered work made by the Executive for hire for the Company, the
Executive agrees to assign, and automatically assign at the time of creation of the Work Product, without
any requirement of further consideration, any right, title, or interest the Executive may have in such Work
Product. Upon the request of the Company, the Executive shall take such further actions, including
execution and delivery of instruments of conveyance, as may be appropriate to give full and proper effect
to such assignment. The Executive shall further: (i) promptly disclose the Work Product to the Company;
(ii) assign to the Company, without additional compensation, all patent or other rights to such Work
Product for the United States and foreign countries; (iii) sign all papers necessary to carry out the
foregoing; and (iv) give testimony in support of his inventions, all at the sole cost and expense of the
Company.
(e)
Books and Records.
All books, records, and accounts relating in any manner to the customers or clients of the
Company, whether prepared by the Executive or otherwise coming into the Executive's possession, shall
be the exclusive property of the Company and shall be returned immediately to the Company on
termination of the Executive's employment hereunder or on the Company's request at any time.
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Employment Agreement – Xxxxx Xxxxxxx
(f)
Acknowledgment by Executive.
The Executive acknowledges and confirms that the restrictive covenants contained in this
Article 7 (including without limitation the length of the term of the provisions of this Article 7) are
reasonably necessary to protect the legitimate business interests of the Company, and are not overbroad,
overlong, or unfair and are not the result of overreaching, duress or coercion of any kind. The Executive
further acknowledges and confirms that the compensation payable to the Executive under this Agreement
is in consideration for the duties and obligations of the Executive hereunder, including the restrictive
covenants contained in this Article 7, and that such compensation is sufficient, fair and reasonable. The
Executive further acknowledges and confirms that his full, uninhibited and faithful observance of each of
the covenants contained in this Article 7 will not cause him any undue hardship, financial or otherwise,
and that enforcement of each of the covenants contained herein will not impair his ability to obtain
employment commensurate with his abilities and on terms fully acceptable to him or otherwise to obtain
income required for the comfortable support of him and his family and the satisfaction of the needs of his
creditors. The Executive acknowledges and confirms that his special knowledge of the business of the
Company is such as would cause the Company serious injury or loss if he were to use such ability and
knowledge to the benefit of a competitor or were to compete with the Company in violation of the terms
of this Article 7. The Executive further acknowledges that the restrictions contained in this Article 7 are
intended to be, and shall be, for the benefit of and shall be enforceable by, the Company’s successors and
assigns. The Executive expressly agrees that upon any breach or violation of the provisions of this Article
6, the Company shall be entitled, as a matter of right, in addition to any other rights or remedies it may
have, to (i) temporary and/or permanent injunctive relief in any court of competent jurisdiction as
described in Article 7(h) hereof, and (ii) such damages as are provided at law or in equity. The existence
of any claim or cause of action against the Company or its affiliates, whether predicated upon this
Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictions contained in
this Article 7.
(g)
Reformation by Court.
In the event that a court of competent jurisdiction shall determine that any provision of
this Article 7 is invalid or more restrictive than permitted under the governing law of such jurisdiction,
then only as to enforcement of this Article 7 within the jurisdiction of such court, such provision shall be
interpreted or reformed and enforced as if it provided for the maximum restriction permitted under such
governing law.
(h)
Extension of Time.
If the Executive shall be in violation of any provision of this Article 7, then each time
limitation set forth in this Article 7 shall be extended for a period of time equal to the period of time
during which such violation or violations occur. If the Company seeks injunctive relief from such
violation in any court, then the covenants set forth in this Article 7 shall be extended for a period of time
equal to the duration of such proceeding including all appeals by the Executive.
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Employment Agreement – Xxxxx Xxxxxxx
(i)
Injunction.
It is recognized and hereby acknowledged by the parties hereto that a breach by the
Executive of any of the covenants contained in Article 7 of this Agreement will cause irreparable harm
and damage to the Company, the monetary amount of which may be virtually impossible to ascertain. As
a result, the Executive recognizes and hereby acknowledges that the Company shall be entitled to an
injunction from any court of competent jurisdiction enjoining and restraining any violation of any or all of
the covenants contained in Article 7 of this Agreement by the Executive or any of his affiliates,
associates, partners or agents, either directly or indirectly, and that such right to injunction shall be
cumulative and in addition to whatever other remedies the Company may possess.
8.
Representations and Warranties of Executive.
The Executive represents and warrants to the Company that:
(a)
The Executive’s employment will not conflict with or result in his breach of any
agreement to which he is a party or otherwise may be bound;
(b)
The Executive has not violated, and in connection with his employment with the
Company will not violate, any non-solicitation, non-competition or other similar covenant or agreement
of a prior employer by which he is or may be bound; and
(c)
In connection with Executive’s employment with the Company, he will not use
any confidential or proprietary information that he may have obtained in connection with employment
with any prior employer, with the exception of current or former affiliates, parents, or subsidiaries of the
company; and
(d)
The Executive has not committed any criminal act with respect to Executive’s
current or any prior employment; and
(e)
The Executive is not dependent on alcohol or the illegal use of drugs
9.
Mediation.
Except to the extent the Company has the right to seek an injunction under Article 7(h) hereof, in
the event a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute
cannot be settled through negotiation, the parties hereby agree first to attempt in good faith to settle the
dispute by mediation administered by the American Arbitration Association under its Employment
Mediation Rules before resorting to the jurisdiction of federal or state courts to resolve any dispute.
10.
Taxes.
Anything in this Agreement to the contrary notwithstanding, all payments required to be made by
the Company hereunder to the Executive or his estate or beneficiaries shall be subject to the withholding
of such amounts relating to taxes as the Company may reasonably determine it should withhold pursuant
to any applicable law or regulation. In lieu of withholding such amounts, in whole or in part, the
Company may, in its sole discretion, accept other provisions for payment of taxes and withholding as
required by law, provided it is satisfied that all requirements of law affecting its responsibilities to
withhold have been satisfied.
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Employment Agreement – Xxxxx Xxxxxxx
11.
Assignment.
The Company shall have the right to assign this Agreement and its rights and obligations
hereunder in whole, but not in part, to any corporation or other entity with or into which the Company
may hereafter merge or consolidate or to which the Company may transfer all or substantially all of its
assets, if in any such case said corporation or other entity shall by operation of law or expressly in writing
assume all obligations of the Company hereunder as fully as if it had been originally made a party hereto,
but may not otherwise assign this Agreement or its rights and obligations hereunder. The Executive may
not assign or transfer this Agreement or any rights or obligations hereunder.
12.
Governing Law.
This Agreement shall be governed by and construed and enforced in accordance with the internal
laws of the State of Florida, without regard to principles of conflict of laws.
13.
Jurisdiction and Venue.
The parties acknowledge that a substantial portion of the negotiations, anticipated performance
and execution of this Agreement occurred or shall occur in Miami, Florida, and that, therefore, without
limiting the jurisdiction or venue of any other federal or state courts, each of the parties irrevocably and
unconditionally (i) agrees that any suit, action or legal proceeding arising out of or relating to this
Agreement which is expressly permitted by the terms of this Agreement to be brought in a court of law,
shall be brought in the courts of record of the State of Florida or the court of the United States; (ii)
consents to the jurisdiction of each such court in any such suit, action or proceeding; (iii) waives any
objection which it or he may have to the laying of venue of any such suit, action or proceeding in any of
such courts; and (iv) agrees that service of any court papers may be effected on such party by mail, as
provided in this Agreement, or in such other manner as may be provided under applicable laws or court
rules in such courts.
14.
Survival.
The respective rights and obligations of the parties hereunder shall survive any termination of the
Executive’s employment hereunder, including without limitation, the Company’s obligations under
Article 6 and the Executive’s obligations under Article 7 above, and the expiration of the Term of
Employment, to the extent necessary to the intended preservation of such rights and obligations.
15.
Notices.
All notices required or permitted to be given hereunder shall be in writing and shall be personally
delivered by courier, sent by registered or certified mail, return receipt requested or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally delivered, sent by facsimile or
sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance
with the foregoing shall be deemed given upon the earlier of receipt by the addressee, as evidenced by the
return receipt thereof, or three (3) days after deposit in the U.S. mail. Notice shall be sent (i) if to the
Company, addressed to 00 Xxxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx CH-8942 Attention: Xxxxx Xxxxxxx, CEO,
and (ii) if to the Executive, to his address as reflected on the payroll records of the Company, or to such
other address as either party shall request by notice to the other in accordance with this provision.
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Employment Agreement – Xxxxx Xxxxxxx
16.
Benefits; Binding Effect.
This Agreement shall be for the benefit of and binding upon the parties hereto and their respective
heirs, personal representatives, legal representatives, successors and, where permitted and applicable,
assigns, including, without limitation, any successor to the Company, whether by merger, consolidation,
sale of stock, sale of assets or otherwise.
17.
Right to Consult with Counsel; No Drafting Party.
The Executive acknowledges having read and considered all of the provisions of this Agreement
carefully, and having had the opportunity to consult with counsel of his own choosing, and, given this, the
Executive agrees that the obligations created hereby are not unreasonable. The Executive acknowledges
that he has had an opportunity to negotiate any and all of these provisions and no rule of construction
shall be used that would interpret any provision in favor of or against a party on the basis of who drafted
the Agreement.
18.
Severability.
The invalidity of any one or more of the words, phrases, sentences, clauses, provisions, sections
or articles contained in this Agreement shall not affect the enforceability of the remaining portions of this
Agreement or any part thereof, all of which are inserted conditionally on their being valid in law, and, in
the event that any one or more of the words, phrases, sentences, clauses, provisions, sections or articles
contained in this Agreement shall be declared invalid, this Agreement shall be construed as if such invalid
word or words, phrase or phrases, sentence or sentences, clause or clauses, provisions or provisions,
section or sections or article or articles had not been inserted. If such invalidity is caused by length of
time or size of area, or both, the otherwise invalid provision will be considered to be reduced to a period
or area which would cure such invalidity.
19.
Waivers.
The waiver by either party hereto of a breach or violation of any term or provision of this
Agreement shall not operate nor be construed as a waiver of any subsequent breach or violation.
20.
Damages; Attorneys Fees.
Nothing contained herein shall be construed to prevent the Company or the Executive from
seeking and recovering from the other damages sustained by either or both of them as a result of its or his
breach of any term or provision of this Agreement. In the event that either party hereto seeks to collect
any damages resulting from, or the injunction of any action constituting, a breach of any of the terms or
provisions of this Agreement, then the party found to be at fault shall pay all reasonable costs and
attorneys' fees of the other.
21.
No Set-off or Mitigation.
The Company’s obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense
or other claim, right or action which the Company may have against the Executive or others.
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Employment Agreement – Xxxxx Xxxxxxx
22.
Section Headings.
The article, section and paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
23.
No Third Party Beneficiary.
Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon
or give any person other than the Company, the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and permitted assigns, any rights or remedies under or
by reason of this Agreement.
24.
Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to
be an original but all of which together shall constitute one and the same instrument and agreement.
25.
Indemnification.
(a)
Subject to limitations imposed by law, the Company shall indemnify and hold
harmless the Executive to the fullest extent permitted by law from and against any and all claims,
damages, expenses (including attorneys' fees), judgments, penalties, fines, settlements, and all other
liabilities incurred or paid by him in connection with the investigation, defense, prosecution, settlement or
appeal of any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and to which the Executive was or is a party or is threatened to be made a
party by reason of the fact that the Executive is or was an officer, employee or agent of the Company, or
by reason of anything done or not done by the Executive in any such capacity or capacities, provided that
the Executive acted in good faith, in a manner that was not grossly negligent or constituted willful
misconduct and in a manner he reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The Company also shall pay any and all expenses (including attorney's fees)
incurred by the Executive as a result of the Executive being called as a witness in connection with any
matter involving the Company and/or any of its officers or directors.
(b)
Except in the event that the Company is involved in an adversarial claim either
against or initiated by Executive, the Company shall pay any expenses (including attorneys' fees),
judgments, penalties, fines, settlements, and other liabilities incurred by the Executive in investigating,
defending, settling or appealing any action, suit or proceeding described in this Article 25 in advance of
the final disposition of such action, suit or proceeding. Subject to the limited exception conditioned
above, the Company shall promptly pay the amount of such expenses to the Executive, but in no event
later than 10 days following the Executive's delivery to the Company of a written request for an advance
pursuant to this Article 25, together with a reasonable accounting of such expenses.
(c)
The Executive hereby undertakes and agrees to repay to the Company any
advances made pursuant to this Article 25 if and to the extent that it shall ultimately be found that the
Executive is not entitled to be indemnified by the Company for such amounts.
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Employment Agreement – Xxxxx Xxxxxxx
(d)
The Company shall make the advances contemplated by this Article 25
regardless of the Executive's financial ability to make repayment, and regardless whether indemnification
of the Indemnitee by the Company will ultimately be required. Any advances and undertakings to repay
pursuant to this Article 25 shall be unsecured and interest-free. The provisions of this Article 25 shall
survive the termination of the Term of Employment or expiration of the term of this Agreement.
(e)
The provisions of this Article 25 shall survive the termination of the Term of
Employment or expiration of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first
above written.
EXECUTIVE:
/s/ Hans Rigendinger
/s/ Xxxxx Xxxxxxx
Xxxx Rigendinger
Xxxxx Xxxxxxx
Chief Operating Officer, Director
Chief Executive and Chief Financial Officer
President
/s/ Max Rӧssler
Director
Page 21
Employment Agreement – Xxxxx Xxxxxxx
EXHIBIT A
FORM OF RELEASE
GENERAL RELEASE OF CLAIMS
Xxxxx Xxxxxxx (“Executive”), for himself and his family, heirs, executors, administrators, legal
representatives and their respective successors and assigns, in exchange for the consideration received
pursuant to Articles 6(c) (in the case of Disability), Articles 6(e) or 6(f) (other than the Accrued
Obligations) of the Employment Agreement to which this release is attached as Exhibit A (the
“Employment Agreement”), does hereby release and forever discharge SunVesta, Inc. (the “Company”),
its subsidiaries, affiliated companies, successors and assigns, and its current or former directors, officers,
employees, shareholders or agents in such capacities (collectively with the Company, the “Released
Parties”) from any and all actions, causes of action, suits, controversies, claims and demands whatsoever,
for or by reason of any matter, cause or thing whatsoever, whether known or unknown including, but not
limited to, all claims under any applicable laws arising under or in connection with Executive’s
employment or termination thereof, whether for tort, breach of express or implied employment contract,
wrongful discharge, intentional infliction of emotional distress, or defamation or injuries incurred on the
job or incurred as a result of loss of employment. Executive acknowledges that the Company encouraged
him to consult with an attorney of his choosing, and through this General Release of Claims encourages
him to consult with his attorney with respect to possible claims under the Age Discrimination in
Employment Act (“ADEA”) and that he understands that the ADEA is a Federal statute that, among other
things, prohibits discrimination on the basis of age in employment and employee benefits and benefit
plans. Without limiting the generality of the release provided above, Executive expressly waives any and
all claims under ADEA that he may have as of the date hereof. Executive further understands that by
signing this General Release of Claims he is in fact waiving, releasing and forever giving up any claim
under the ADEA as well as all other laws within the scope of this paragraph 1 that may have existed on or
prior to the date hereof. Notwithstanding anything in this paragraph 1 to the contrary, this General
Release of Claims shall not apply to (i) any actions to enforce rights arising under, or any claim for
benefits which may be due Executive pursuant to, the Employment Agreement, (ii) any rights or claims
that may arise as a result of events occurring after the date this General Release of Claims is executed,
(iii) any indemnification rights Executive may have as a former officer or director of the Company or its
subsidiaries or affiliated companies, (iv) any claims for benefits under any directors’ and officers’ liability
policy maintained by the Company or its subsidiaries or affiliated companies in accordance with the terms
of such policy, and (v) any rights as a holder of equity securities of the Company.
Executive represents that he has not filed against the Released Parties any complaints, charges, or
lawsuits arising out of his employment, or any other matter arising on or prior to the date of this General
Release of Claims, and covenants and agrees that he will never individually or with any person file, or
commence the filing of, any charges, lawsuits, complaints or proceedings with any governmental agency,
or against the Released Parties with respect to any of the matters released by Executive pursuant to
paragraph 1 hereof (a “Proceeding”); provided, however, Executive shall not have relinquished his right
to commence a Proceeding to challenge whether Executive knowingly and voluntarily waived his rights
under ADEA.
Executive hereby acknowledges that the Company has informed him that he has up to twenty-one
(21) days to sign this General Release of Claims and he may knowingly and voluntarily waive that
twenty-one (21) day period by signing this General Release of Claims earlier. Executive also understands
that he shall have seven (7) days following the date on which he signs this General Release of Claims
within which to revoke it by providing a written notice of his revocation to the Company.
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Employment Agreement – Xxxxx Xxxxxxx – Exhibit
Executive acknowledges that this General Release of Claims will be governed by and construed
and enforced in accordance with the internal laws of the State of Florida applicable to contracts made and
to be performed entirely within such State.
Executive acknowledges that he has read this General Release of Claims, that he has been advised
that he should consult with an attorney before he executes this general release of claims, and that he
understands all of its terms and executes it voluntarily and with full knowledge of its significance and the
consequences thereof.
This General Release of Claims shall take effect on the eighth day following Executive’s
execution of this General Release of Claims unless Executive’s written revocation is delivered to the
Company within seven (7) days after such execution.
____________________________
Xxxxx Xxxxxxx
_______________, 20__
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Employment Agreement – Xxxxx Xxxxxxx – Exhibit
